Madras High Court
Msc Agency (India) Pvt. Ltd vs Commissioner Of Customs (Import-Sea) on 17 October, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No. 16211 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.10.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No.16211 of 2018 and
WMP.No.19305 of 2018
MSC Agency (India) Pvt. Ltd.
1st Floor, KGN Towers,
No.62, Thiraj Salai
Egmore, Chennai-600 015
Rep. by its Authorized Signatory:
A.Umaibalan ...Petitioner
Vs.
1.Commissioner of Customs (Import-Sea)
Customs House,
No.60 Rajaji Salai, Chennai-600 001.
2.Deputy Commissioner of Customs
Un-cleared Cargo Cell,
Custom House, No.60
Rajaji Salai, Chennai-600 001.
3.All Cargo Logistics Ltd.
Container Freight Station
No.913, Thiruvorttiyur High Road
Ernavur, Chennai-600 057.
4.Futura Polysters Ltd.
Company in Liquidation
Rep. by Official Liquidator of the
Hon'ble Bombay High Court
At Office of the Official Liquidator
High Court Bombay,
Bank of India
Building, 5th Floor,
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https://www.mhc.tn.gov.in/judis
W.P.No. 16211 of 2018
Mahatma Gandhi Road,
Mumbai-400023
(Cause-title amended vide order
dated 14.06.2022)
5.The Managing Director
Tamil Nadu Pollution Control Board
TNPCB of DEE TNPCB
77A, Padi Ambattur Industrial
Estate Road, Mogappair, Chennai -58.
(R5 Suo Motu Impleaded Vide
order dated 14.06.2021) ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of certiorari calling upon the records leading to the passing of
the order dated 06.06.2018 vide F.No.S. Misc.No.22/2012-UCC passed by
the 2nd respondent and consequently direct the 4th respondent to re-export
the cargo contained in 13 containers.
For Petitioner : Mr.P.Giridharan
For Respondents : Mr.M.Santhanaraman [R1 and R2]
: Mr.Pushpa Menon [R3]
: Mr.P.R.Renganath [R4]
: Mr.Shanmugavalli Sekar [R5]
Standing Counsel
ORDER
The challenge in this matter is to order dated 06.06.2018 that has been passed by the Deputy Commissioner of Customs/ R2 directing the petitioner, the carrier, to re-export hazardous waste contained in 13 containers to the respective countries of export at their own cost, immediately.
2 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018
2. This writ petition has been pending on the file of this Court since 2018. Pending writ petition, my predecessor had impleaded the Tamil Nadu Pollution Control Board on 14.06.2021 in the following terms:
On account of efflux of time, the nature of goods now lying with the custody of the third respondent and its status is to be ascertained for the purpose of proceeding with the matter. The writ petition is pending for about three years and the respective learned counsels appearing on behalf of the parties are also of the opinion that the nature of the goods, whether it is hazardous or not and the present status is to be ascertained for the purpose of considering the grounds raised in the writ petition. The nature and the present condition of the goods is to be examined by the competent authority namely the Tamil Nadu Pollution Control Board. Thus, either of the parties to the writ petition is at liberty to approach the Tamil Nadu Pollution Control Board either individually or jointly by filing an appropriate application and on receipt of any such request / application, the Tamil Nadu Pollution Control Board is directed to inspect the goods now lying with the custody of the third respondent within a period of one week from the date of receipt of a copy of the request / application and submit a report, enabling this Court to proceed with the matter further.
2. Registry, High Court of Madras is directed to communicate the copy of this order to the Chairman, Tamil Nadu Pollution Control Board, 76, Mount Salai, Guindy, Chennai-600 032. 3. List the matter after two weeks.
3. Thereafter, there has been substantial elapse of time in the Pollution Control Board conducting an inspection to confirm the nature of the material that was imported. On 25.08.2022, I had, after extracting from 3 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018 the report filed by the Pollution Control Board, ordered thus:
.......
2. A report dated 23.08.2022 has been filed by the Joint Chief Environment Engineer of the Tamil Nadu Pollution Controal Board (TNPCB). After noting earlier orders passed, at paragraph 7 and 8, the officers states as follows:
7.It is respectfully submitted that based on the above order the following 13 Nos. of containers bearings numbers were scanned through the scanning facility available in the Chennai Port Trust on 05.08.2022 in the presence of TNPCB officials i. GESU4474574 ii. MSCU7796616 iii. MSCU7982930 iv. MSCU8048460 v. INKU6690348 vi. MEDU8577840 vii. MSCU8265450 viii. MSCU8709637 ix. TRLU6975304 x. MSCU7190655 xi. MSCU8765733 xii. MEDU8155655 xiii. MSCU9416253
8.The scanned images of the containers are enclosed in Annexure I. It is submitted that from the images it can be seen that the materials loaded inside the containers could not be differentiated / identified. Hence, it is submitted that all the containers may be unloaded and physically verified 4 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018 in order to ensure that the containers contain only recyclable crushed pet bottles and plastic bags. If the materials are only crushed pet bottles, then the same may be sent for recycling to the facility authorized by TNPCB/CPCB. If the materials are found to be Hazardous Waste, the same shall be disposed off as per the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016.
3. The request appears to be in order and is, hence, accepted. Let all parties coordinate to give effect to the request of the TNPCB and facilitate unloading and physical verification of the container to ensure that they contain only crushed bottles and plastic bags.
4. This exercise shall be completed by the officials of the TNPCB within a period of four weeks from today. Thereafter, post a determination as to whether the contents are recycleable, the same may sent for recycling to an authotised facility.
5. List this matter on 27.09.2022 for a further report from the TNPCB as to whether consignments has been recycled or whether they contitutes hazardous materials.
4. On 27.09.2022, an accommodation was sought and granted to the TNPCB for filing a further report. Today learned counsel appearing for the Pollution Control Board has filed a report dated 17.10.2022 confirming categorically at para 8 that the consignment imported comprises plastic waste and not merely crushed pet bottles. Para 8 of the report reads as follows:
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8. The scanned images of the containers are enclosed in Annexure I. It is submitted that from the images it can be seen that the materials loaded inside the containers could not be differentiated/identified. hence, it is submitted that all the containers may be unloaded and physically verified in order to ensure that the containers contain only recyclable crushed pet bottles and plastic bags. If the materials are only crushed pet bottles, then the same may be sent for recycling to the facility authorized by TNPCB/CPCB. If the materials are found to be Hazardous Waste, the same shall be disposed off as per the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016.
5. The third respondent, All Cargo Logistic Ltd., the Container Freight Station, has filed a compilation dated 17.10.2022 with photographs to show that the wastes are now out of the container and lying in the CFS which constitutes a hazard to the environment in general.
6. It is unfortunate that this matter has been hanging fire since 2018 in spite of the impugned order which, in my considered view, has been correctly passed directing re-export of the goods.
7. As pointed out by learned Standing Counsel for the Customs, the impugned order has rightly been passed upon the liner/carrier, who had been engaged by the exporter. The impugned order is thus confirmed directing re- export to be carried out within a period of three weeks from today. The petitioner is always at liberty to have the costs reimbursed by the 6 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018 exporter/importer, and may take necessary steps in this regard, in accordance with law.
8. This writ petition is dismissed. No costs. Connected miscellaneous petition is closed. No costs.
17.10.2022 Index : Yes/No Speaking Order/Non speaking Order ska Note: Issue order copy on 18.10.2022. To
1.Commissioner of Customs (Import-Sea) Customs House, No.60 Rajaji Salai, Chennai-600 001.
2.Deputy Commissioner of Customs Un-cleared Cargo Cell, Custom House, No.60 Rajaji Salai, Chennai-600 001.
3.All Cargo Logistics Ltd.
Container Freight Station No.913, Thiruvorttiyur High Road Ernavur, Chennai-600 057.
4.The Managing Director Tamil Nadu Pollution Control Board TNPCB of DEE TNPCB 77A, Padi Ambattur Industrial 7 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018 Estate Road, Mogappair, Chennai -58. 8 https://www.mhc.tn.gov.in/judis W.P.No. 16211 of 2018 DR.ANITA SUMANTH,J.
ska W.P.No. 16211 of 2018 and WMP.No.19305 of 2018 17.10.2022 9 https://www.mhc.tn.gov.in/judis